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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-01-DT-523
)
Thomas A. Brothers ) NAL/Acct. No.
200232360004
Berkley, Michigan )
) FRN # 0006-1077-26
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January
14, 2002
By the District Director, Detroit Office, Enforcement Bureau:
I. Introduction
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Thomas A. Brothers has apparently violated
Section 301 of the Communications Act of 1934 (``Act'')1, as
amended, by operating an unlicensed radio transmitter on
frequency 88.3 MHz. We conclude that Thomas Brothers is
apparently liable for a forfeiture in the amount of eleven
thousand dollars ($11,000).
II. Background
2. On July 27, 1998, an investigation of unlicensed radio
broadcasts on 92.7 MHz in the Berkley, Michigan area was
conducted. Commission agents located the source of the radio
transmissions on 92.7 MHz to 3845 Ellwood, Berkley, Michigan. An
inspection was attempted but the operator of the station was not
home; however, the agents were able to talk to him later in the
day by telephone and information was obtained which indicated
that Thomas A. Brothers was the owner and operator of the
station. On July 28, 1998, the Detroit District Director issued
a Warning Letter for unlicensed operation to Thomas A. Brothers,
3845 Ellwood, Berkley, Michigan. Information was received that
indicated Mr. Brothers would cease the unlicensed operation.
3. On September 15, 2000, an investigation of unlicensed
radio broadcasts on 87.9 MHz in the Berkley, Michigan area was
conducted. A Commission agent located the source of the radio
transmissions on 87.9 MHz to 3845 Ellwood, Berkley, Michigan.
This was the same location that was identified previously on July
27, 1998, as broadcasting unlicensed radio broadcasts. On
October 6, 2000, the Detroit District Director issued a NOTICE OF
UNLICENSED RADIO OPERATION Warning Letter to Thomas Brothers,
3845 Ellwood, Berkley, Michigan. Information was received that
indicated Mr. Brothers would cease his unlicensed radio
broadcasts.
4. On September 2, 2001, in connection with new complaints
of unlicensed radio broadcasts in the Berkley, Michigan area, a
Commission agent located the source of radio transmissions on
88.3 MHz to 3845 Ellwood, Berkley, Michigan. This was the same
location that was identified previously on July 27, 1998, and
September 15, 2000 as broadcasting unlicensed radio broadcasts.
On September 14, 2001, Commission agents met with Thomas A.
Brothers and inspected the radio station at 3845 Ellwood,
Berkley, Michigan. During this inspection Mr. Brothers indicated
that he had operated the station but was discontinuing the
operation.
III. Discussion
5. Based on the evidence before us, we find that Thomas A.
Brothers willfully2 violated Section 301 of the Act. The
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12
FCC Rcd 17087, 17113 (1997), recon. denied, 15 FCC Rcd 303(1999)
(``Forfeiture Policy Statement'')3, sets the base forfeiture
amount at $11,000 for operation of an unlicensed transmitter. In
assessing the monetary forfeiture amount, we must take into
account the statutory factors set forth in Section 503(b)(2)(D)
of the Act,4 which include the nature, circumstances, extent, and
gravity of the violation, and with respect to the violator, the
degree of culpability, any history of prior offenses, ability to
pay, and other such matters as justice may require. The record
reveals that Thomas A. Brothers does not have an overall history
of compliance and the violations are egregious. Applying the
Policy Statement and the statutory factors to the instant case
and applying the inflation adjustments, we believe that an eleven
thousand dollar ($11,000) monetary forfeiture is warranted.
IV. Ordering Clauses
6. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act5 and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules (``Rules'')6 Thomas A. Brothers is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of eleven thousand dollars ($11,000) for willfully and
repeatedly violating Section 301 of the Act.
7. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NOTICE
OF APPARENT LIABILITY, Thomas A. Brothers SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
8. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. 200232360004, and FRN # 0006-1077-26.
9. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, D.C.
20554 and MUST INCLUDE THE NAL/Acct. No. 200232360004.
10. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the petitioner's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
submitted.
11. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.7
12. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to Thomas A. Brothers, 3845 Ellwood, Berkley,
Michigan 48072-3123.
FEDERAL COMMUNICATIONS
COMMISSION
James A. Bridgewater
District Director
Detroit Office
_________________________
1 47 U.S.C. § 301.
2 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to Section 503(b) of the Act, provides that ``[t]he term
`willful', when used with reference to the commission or omission
of any act, means the conscious and deliberate commission or
omission of such act, irrespective of any intent to violate any
provision of this Act ....'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
347 C.F.R. § 1.80.
4 47 U.S.C. § 503(b)(2)(D).
5 47 U.S.C. § 503(b).
6 47 C.F.R. §§ 0.111, 0.311 and 1.80.
7 See 47 C.F.R. § 1.1914.